DPP v Muradi [2025] VCC 1207

Charge 1 carries a maximum penalty of 25 years' imprisonment.

Charge 2: Criminal Damage (Intentionally Damage/Destroy) contrary to s 197 Crimes Act 1958 (Vic)

Charge 2 carries a maximum penalty of 10 years' imprisonment.

1. Following your arraignment on that day, 26 April, a question arose as to your fitness to plead and on 24 July 2025, following an investigation, I found you fit to be tried.
2. On 1 August 2025 when your matter came before me for plea hearing you indicated that you recalled entering pleas of guilty to the charges on 26 April 2024 and I was satisfied, and the parties did not seek to persuade me otherwise, that you maintained those pleas.
3. This morning prior to sentence, you agreed to have a summary charge of unlicensed driving (Charge 3) dealt with in the present plea proceedings. When that charge was put to you, you agreed to plead guilty to the charge. The charge is punishable by 60 penalty units or six months' imprisonment.

1. The offence of aggravated carjacking is a 'category 1 offence'[1] which means that the court must impose a custodial order, and the order cannot be a combination sentence.[2]

1. Section 10AD(1) of the Act further provides that a court must impose a term of imprisonment on a person convicted of aggravated carjacking and must fix under s11 a non-parole period of not less than three years' imprisonment unless the court finds under s10A of the Act that a 'special reason' exists not to fix a mandatory non-parole period.
2. Your counsel submitted that there were two bases on which I could find a 'special reason' exists in your case not to fix a mandatory non-parole period of three years, namely:

a) Pursuant to s10A(2)(c)(i), at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduces your culpability; and/or

b) Pursuant to s10A(2)(e), there are substantial and compelling circumstances in your case that are exceptional and rare and that justify doing so.

1. The agreed facts of your offending are set out in the Summary of Prosecution Opening for Plea (Exhibit A). In summary, on 18 August 2023, the victim who was not known to you, walked to the carpark at the rear of his apartment block in Dandenong. The victim observed you standing next to his Holden Vectra car and saw that the front passenger side window of the car had been smashed (Charge 2 - Criminal Damage). The victim asked you why you had damaged the car, and you said you had not. You then walked towards the victim and pulled a small knife from your jacket. You motioned to the victim with the knife in a way that suggested you were going to stab the victim, and the victim was fearful he was going to be stabbed.
2. The victim was then grabbing both your wrists whilst you were saying that you were going to stab him if he did not hand over his car keys. Whilst you continued to hold the knife in your right hand, the victim reached into his pant pocket, took out his car keys and handed them to you before running away down the driveway. The victim called Triple 0 and whilst he was doing so you started his car, drove it across a small grass area and tried to turn down the driveway (Charge 1 - Aggravated Carjacking).
3. You collided with a side fence of the property, continued to drive down the driveway and turned the wrong way into a one-way service lane on the Princes Highway. You continued driving in the wrong direction before trying to drive through a garden at the end of the service lane at which time the car became bogged about 150 metres from the victim's address. You tried unsuccessfully to free the vehicle with the assistance of a bystander but fled when you heard police sirens.
4. The car sustained significant front-end damage. The front passenger window was smashed, and bits of broken glass were strewn throughout the front of the vehicle. (Charge 2 - Criminal Damage). The knife you used in the offending was found in the front passenger side footwell.

1. In your record of interview with police, you said:

a) You did not break the window. It was damaged when you got into the car.

b) A man you didn't know was the person who stole the car and was holding the knife

c) That man gave you the keys, and you took them as the man wanted to hit you

d) You drove the victim's car but you did not steal it

f) You were not armed with a knife and you did not demand the victim's car keys or car.

1. Your background and personal circumstances were obtained from information you, your father Namatullah, and your mother Ms Gul Zewar provided to the psychologist Ms Maynard, who assessed you ahead of the first listing of your plea and who first raised the issue of your fitness to plead. You were born in Afghanistan and are of ethnic Hazara background. Your family fled from Afghanistan and moved to Hazara Town in North-West Pakistan when the Taliban took power. You were two to three years of age at that time. You lived with your mother and three sisters in Hazara Town until March 2023 when you came to Australia on a permanent visa.
2. Your father, Namatullah, left Hazara Town for Australia in 2012 intending to bring your family to Australia once he was settled as he believed Hazara Town was not much safer than Afghanistan. He remained in Australia for 12 years, although he returned to visit you regularly.
3. Your mother reported that you had a learning difficulty, and you could not communicate full sentences until aged four to five and would often communicate by pointing at things. Your mother said you displayed strange behaviours from a very young age such as talking to yourself or to objects such as food, the spoon and the plate. You reported that you heard voices. You were not violent. Your mother said that when you were aged between 10-15 you were not learning much at school and when the teacher tried to help you, you became angry and frustrated. You were suspended or expelled from school for fighting with the boys or teachers. Your mother later learned that you did not turn up to school but she never learned where you went instead. Your mother said you were forgetful and had low comprehension.
4. When you were 14-15 your mother asked if you were addicted to anything which you denied although your friends told her you were using opiates. When you were around 16 your father, Namatullah visited you. He thought your drug use and mental health had deteriorated and he found you stealing from home, so he arranged for you to be sent to a drug rehabilitation centre where you stayed for three months, although you still denied you were using drugs. Your parents were not permitted to visit you during your stay. The rehabilitation centre reported that you had been using charas (a form of hashish) and pills prior to your admission.
5. In 2020 Namatullah returned to Hazara Town, and believed you were still addicted. You were sent to the rehabilitation centre again, this time for nine months. You reported that you were scared there and hit. Ultimately your family concluded that you could not be helped in Pakistan, so arrangements were made for you and the family to come to Australia. You continued to deny any drug use. In 2023 you moved to Australia, but you offended before any arrangements could be put in place for you to access mental health or drug abuse services.
6. Your mother also reported that when you were 15 you were present when a large explosion occurred 100 metres from your school and many school children were killed and the school was destroyed. After this you were scared and traumatised, easily startled by noises and would not turn off the light at night. After you came to Australia, you would walk around all night, you were afraid of the house and noises in it, and you would become angry and upset but not say why. Your mother said that for a long time you distrusted people, isolated yourself and were fearful of losing things. The family are unsure if you were using substances as you were often away from home and they did not know where you went.
7. Your father Namatullah said you are a practising Muslim and have undertaken religious studies. Your parents reported that you had not undertaken much schooling since aged 11, and you are illiterate. You told your lawyer that you were enrolled at Box Hill TAFE at the time of your arrest and were also undertaking a doctorate in engineering and computer studies in the city. You told Ms Mynard you were studying at Dandenong TAFE doing English grammar. You reported you had been married for three to four years, but your parents confirmed that you have always been single. You indicated you did not use alcohol and denied the ongoing issues with drugs reported by your parents as told to them by your friends and the
8. You cannot read or speak fluent English but wish to learn more. You denied any mental health issues and said you were not depressed, angry or agitated. You were not at the time of interview taking any medication.
9. In terms of your mental health at the time of the offending, I have had regard to the opinions of Ms Mynard, Professor Ogloff and Dr Reid noting that the latter two opinions were prepared solely for the purposes of your fitness investigation and accordingly do not express opinions directly addressing your mental state at the time of the offending or the degree to which your mental state was connected to the offending.
10. Ms Mynard provisionally diagnosed you with a moderate intellectual disability. Dr Reid and Professor Ogloff also concluded that it is likely you have an intellectual disability or intellectual development disorder. Whilst Professor Ogloff said this disability was 'likely in the mid-range' with your IQ between 50-70, he could not determine it with specificity because your poor level of co-operation precluded further cognitive testing or an assessment of the influence of linguistic and cultural factors on measurement. Given the absence of dispute between the three experts and the parties, I accept you have an intellectual disability or intellectual development disorder, although I note your estimated IQ may be linked to your linguistic and cultural differences.
11. Your counsel submitted that your intellectual disability - which is clearly an impairment of mental function that may attract the principles in Verdins[3] - affected your ability to exercise appropriate judgment, to make calm and rational choices, to think clearly at the time of the offence or to reason as to the wrongfulness of your conduct[4]. Your counsel submitted your intellectual disability enlivens principles 1, 3 and 4 of Verdins. That is, your level of moral culpability and the weight that might ordinarily be given to specific and general deterrence should be reduced. I do not understand the prosecution to have disagreed with that submission. In Muldrock v The Queen[5] the court held that the existence of a causal link will be less likely to arise in the case of an offender with an intellectual disability because such an offender will usually have a reduced capacity to reason as to the wrongfulness of his or her actions. 29
12. In your case, Ms Mynard opined that when you offended your "...judgment was significantly impaired..." because of your moderate intellectual disability and your language difficulties and psychotic disorder. She continued that you have a reduced ability to resolve conflict, communicate effectively and internally verbally reason. Professor Ogloff opined that an individual with a mild intellectual development disorder like yourself has below-average intellectual functioning and would display limitations in problem-solving and learning. I consider that given your intellectual disability and the circumstances of your offending, that your sentence should be reduced to reflect the application of Verdins principles 1, 3 and 4.
13. For completeness, Ms Mynard also provisionally diagnosed you with post-traumatic stress disorder ("PTSD") arising from the bombing incident, a psychotic disorder and substance use disorder. The prosecution contended that there was insufficient evidence to establish a diagnosis of PTSD. I agree. Dr Reid provided a qualified view, based on your parents' accounts of your background, that it is likely you have a history of PTSD, but this was qualified because it was based on his very limited communication with you. Professor Ogloff opined however that your presentation did not align with a mood or psychotic-spectrum type disorder and in view of your restricted communication it was impossible to explore comprehensively a diagnosis of PTSD notwithstanding information that you were exposed to death and trauma in your developmental years. You also did not present with PTSD symptoms such as intrusive thoughts, lack of sleep, mood disturbance such as to conclude with any definition that you had PTSD. Justice health records also show no evidence of perceptual or thought disturbances and no anti-psychotic or mood-stabilising medications being prescribed. Further, during the plea your counsel indicated that reliance was being placed primarily on your childhood experiences as enlivening the application of Bugmy principles, noting also that the diagnosis of PTSD by Ms Mynard was only provisional.
14. Finally, notwithstanding Ms Mynard's further provisional diagnoses of a psychotic disorder and a substance use disorder, neither of these disorders was relied on by your counsel at your plea. Further, both Dr Reid and Professor Ogloff opined that that there was no evidence of psychiatric illness including psychosis or disturbed mood impacting on your deficits and no demonstration of symptoms consistent with a psychotic disorder. There was also no strong evidence of a history of a psychotic disorder based on the behaviours exhibited by you as a child - e.g. speaking to objects - as these are non-specific and do not reflect delusions or hallucinations and intellectual or developmental issues could contribute to these behaviours.

In terms of a substance use disorder, based on the opinions - albeit qualified - of Ms Mynard and Dr Reid and the history presented by your parents, you likely have a history of substance use disorder. There is no evidence as to whether, or how, this was operative on your offending. Whilst you told attending police you were drunk when you committed the offence, there is no evidence that this was the case or that you were using any illicit substances.

1. It was conceded by the prosecution, and I agree, that the principles espoused in Bugmy do have some application, in a general sense, to the assessment of your moral culpability. You were subject to extreme exposures during your childhood. As a toddler aged 2-3 years to had to flee the Taliban and then spend your early years living in a dangerous area in North-West Pakistan. When you were 15 you were in the vicinity of an explosion near your school where children were killed and your school was destroyed. This existence would have been extremely traumatising notwithstanding its effects do not manifest as a formal diagnosis of PTSD at this juncture.
2. Your situation is in some ways analogous to that in Wilson v The King[6] where:

"The offender spent his childhood and adolescence in traumatic circumstances as he was exposed to severe forms of persecution and violence, culminating in the violent deaths of his father and of his brother, his time spent as a refugee, and his escape to Australia, alone and in particularly difficult circumstances, which included a further two years in refugee detention on Christmas Island"

1. In those circumstances, the court found that Bugmy principles were applicable and important because "...they recognise the enduring relationship between the effects of the profound dysfunction of a person's early years and the moral culpability of that person for offences later committed during adulthood", effects which do not diminish with the passage of time. Whilst I accept your moral culpability is reduced because of your exposure to traumatic events, I am mindful that I have reduced your moral culpability based on the application of Verdins principle 1 and I must avoid any 'double counting'.
2. You have no prior convictions, and no subsequent or outstanding matters. You were around 22 at the time of the offending and are now 23 to 24 as your precise date of birth is unknown. I take your relative youth into account in sentencing you, most notably the need to promote your rehabilitation which will in turn achieve a measure of protection of the community.
3. I accept you indicated a preparedness to plead guilty at an early stage and the process was interrupted only by virtue of the fitness proceedings. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, especially the victim, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and a degree of remorse. There is no evidence before me of any expression of remorse over and above the fact of your plea.
4. I have also given weight to the fact that imprisonment will be more onerous on you because you face the risk of deportation. Deportation would also represent additional punishment on you because your intention has always been to reside permanently with family in Australia. Your situation is further complicated because if you are subject to a deportation order, pending any review of the order or any successful application for a visa or the like allowing you to reside in the community, you would be held in immigration detention as the government does not deport refugees to Afghanistan. Whilst not expressly put during the plea, I also consider Verdins limb 6 applies to you as imprisonment will be more onerous on because of your deficits.
5. Turning to your prospects of rehabilitation. Your intellectual disability is a lifelong condition and Ms Mynard indicated that you require several interventions to stabilise your mental health. You have the support of your family who will help you access accommodation and services in the community and an application for NDIS services has commenced. These factors, along with your lack of prior convictions bode well for the future. However, your mistrust of people and unwillingness or inability to engage in treatment or psychological testing means it is difficult to gain a proper and full understanding of your mental health treatment needs so your prospects of rehabilitation must be assessed as very guarded. For the same reasons, your risk of reoffending at present cannot be assessed as low and if you do not receive the assistance you need, I think it likely you will reoffend.

1. In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s 5 of the Sentencing Act 1991 (Vic) and to the matters outlined in s 5(2), which include the maximum penalty for the offences, the nature and gravity of the offences, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character and the presence of any aggravating or mitigating factors or other relevant circumstances.
2. I am also mindful that the offence of aggravated carjacking is a very serious offence as shown by the maximum sentence for aggravated carjacking, 25 years' imprisonment, with a requirement, absent any special reason, to impose a minimum non-parole period of at least three years. It is also an offence that has become increasingly prevalent in recent years,[7] and sentencing considerations of general deterrence, denunciation, just punishment, specific deterrence and protection of the community are paramount.[8]

1. Your counsel argued that your offending was at the lower end of the offence of aggravated carjacking. It was submitted that the incident was brief, no injury was sustained by the victim and your actions were spontaneous and opportunistic.
2. The prosecution submitted your offending fell within the mid-range of seriousness. It involved a weapon, and you said you would stab the victim if he did not give you his keys, so there was an imminent threat to the victim which instilled fear in him. I consider your offending was not at the lower end of seriousness but more towards the mid-range. You were equipped with a knife, and you used it to create fear. You were brandishing it around. You threatened to stab the victim. Your victim would have been terrified.

1. As noted above, it was submitted on your behalf that there were 2 bases on which I could find that a 'special reason' exists in your case not to fix a mandatory non-parole period of 3 years, namely:

a) Pursuant to s10A(2)(c)(i), at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduces your culpability; and/or

b) Pursuant to s10A(2)(e), there are substantial and compelling circumstances in your case that are exceptional and rare and that justify doing so.

1. Your intellectual disability was relied upon to enliven the first basis. That is, you have impaired mental functioning within the meaning of the Disability Act 2006 (Vic), namely an intellectual disability - likely to be between 50 and 70 in terms of IQ - representing significant sub-average general intellectual functioning and significant deficits in adaptive behaviour. Further, your counsel argued you're your intellectual disability was causally linked to the commission of the offence and substantially and materially reduces your culpability. The prosecution argued that whilst it conceded that Verdins was applicable: a) the extent that your intellectual disability was causally linked to your offending was unclear, for instance, because your disability was also impacted by language and cultural issues and b) it was not a matter that "substantially or materially reduces" your culpability. I disagree. Whilst language and cultural issues may impact on your tested level of disability, there appears no doubt that you do in fact have an intellectual disability. As I noted above, I also accept your disability substantially and materially reduces your culpability.
2. Even if I am wrong in this determination, I find that a) your intellectual disability; b) your lower moral culpability and the reduction in the weight to be afforded general and specific deterrence by virtue of Verdins principles; c) the reduction in your moral culpability due to the application of Bugmy principles; d) your lack of prior convictions e) your youth; and f) the consequences of your liability to deportation in combination represent substantial and compelling circumstances that are exceptional and rare such that they enliven s10A(2)(e) and justify a 'special reason' not to fix a mandatory non-parole period.
3. In making this determination I have regard to the matters set out in ss 10(2B) and (3) of the Act, including that I must give primary weight to general deterrence and the objective of parliament in enacting the provision, and not consider your previous good character, prospects of rehabilitation and early plea of guilty. Although the prosecution argued that whilst your set of circumstances was 'unusual', they were not "rare and exceptional" and "substantial and compelling", in my view the set of mitigating circumstances you present with are not merely 'unusual'. In isolation the circumstances relied on may be viewed as commonly seen by the courts but in combination, the factors you present with - especially your intellectual disability, your traumatic upbringing, your youth, your possible deportation or indefinite detention - are sufficient to enliven in combination to constitute a 'special reason'.[9]
4. Having determined that I am not bound to impose a non-parole period of at least 3 years, I turn to your counsel's next argument as to the length of the sentence I should impose on you. Your counsel accepted that a term of imprisonment was inevitable for your offending but submitted that this should be under 12 months duration based on the plethora of mitigating factors you can call in aid. Ms Mildenhall stated that she was not seeking the imposition of a sentence under 12 months to avoid you being subject to deportation, which I had indicated would be contrary to law.[10] Rather, she argued that a sentence of under 12 months was still capable of reflecting the primary sentencing principles which I took to include general deterrence, just punishment, protection of the community and denunciation. The prosecution submitted that if I did find a special reason existed, I should nevertheless impose a sentence that carried with it the imposition of a non-parole period.
5. I have carefully considered all the matters raised and I am unable to accept that a sentence of under 12 months would be appropriate in your case. Clearly you have significant factors in mitigation of punishment however a sentence of under 12 months would be inappropriately lenient for your offending and it would fail to give appropriate weight to general and specific deterrence (which, albeit moderated in your case, are not entirely eliminated), the need to protect the community, to denounce your offending and to reflect a measure of just punishment.

1. I was provided five cases by the defence said to represent comparable sentences that may be of assistance in sentencing. I have had regard to these cases, most notably for the sentencing principles they set out, but each case must be determined on its own facts and the cases presented - as is often the case - have relevant differences to your offending
2. Mr Muradi, I am now going to sentence.

1. On Charge 1, aggravated carjacking you are convicted and sentenced to three years and three months' imprisonment. I direct this sentence commences today, 21 August 2025.
2. On Charge 2, criminal damage you are convicted and sentenced to eight months imprisonment. I order that five months of the sentence be served cumulatively on the sentence imposed on Charge 1.
3. I find the summary charge of unlicensed driving (Charge 3) proven and sentence you to one month imprisonment to be served concurrently with the sentence imposed on Charge 1.
4. That results in a total effective head sentence of three years and eight months' imprisonment. I order that you serve a non-parole period of two years and one month imprisonment before being eligible for release on parole.
5. I direct that 734 days be declared as having been served by way of pre-sentence detention.
6. Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of five years' imprisonment with a non-parole period of three years.
7. I make the order for forfeiture in relation to the knife.
8. COUNSEL: As Your Honour pleases.
9. HER HONOUR: Thank you. Nothing arising, Ms Struthers?
10. MS STRUTHERS: Nothing at this stage, Your Honour, thank you.
11. HER HONOUR: No. Thank you.

[1] s3(1)(ib) Sentencing Act 1991 (Vic)

[2] s 5(2G) Sentencing Act 1991 (Vic)

[3] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[4] Romero v The Queen [2011] VSCA 258, [13].

[5] [2011] HCA 39; (2011) 244 CLR 120

[6] [2023] VSCA 276

[7] Teryaki v R [2019] VSCA 120, [50].

[8] Jason Mammoliti v The Queen [2020] VSCA 52; 281 A Crim R 511

[9] Fariah v The Queen [2021] VSCA 213.

[10] Matamata v The King [2021] VSCA 253, [75]; Loftus